Good to see Weiss v The Queen (2005) 224 CLR 300 getting another nudge into the obscurity it so richly deserves, in Lane v The Queen [2018] HCA 28 (20 June 2018).
Lane raises, for reflective readers, the difficulty of distinguishing trial errors that go to what Australians call the presuppositions, and errors that are less fundamental but which nevertheless require the quashing of a conviction.
The point of trying to distinguish these types of errors from each other is that when the former occur there is no need for an appellate court to ask whether the verdict could have been affected by the error, whereas when the latter occur the appellate court asks itself whether there is a real risk that the verdict would have been more favourable to the defendant (appellant) if the error had not happened.
Presuppositional errors require quashing of convictions, whereas other errors (beyond the trivial or irrelevant) raise the “real risk” question.
It is probably not inaccurate to think of presuppositional errors as those which undermine the fairness of trials. In Lane, the joint judgment of Kiefel CJ, Bell, Keane and Edelman JJ treats the error as presuppositional: the jury had not been told that unanimity on a particular factual issue was, in the circumstances of the case, required. While recognising the limited utility of classifications of errors, the joint judgment says that it does put the focus on the effects of the errors (at [46]), and that here the misdirection was apt to prevent the performance by the jury of its function of reaching a unanimous verdict. This required, without further inquiry, the quashing of the conviction.
We could say that a trial resulting in a verdict that did not comply with the law was not a fair trial.
The other view of the error in Lane was taken by Gageler J, who agreed with the orders made in the joint judgment. Here, the question was simply whether the possibility of lack of unanimity was more than theoretical (at [58]). In the circumstances, it could not be said that without the error the jury would have returned the same verdict (at [63]).
The joint judgment does not engage with Gageler J’s approach, so without an explanation for why it is wrong it has more weight than it would otherwise have. Even so, Lane is authority for the proposition that where the circumstances of a case are such that a jury may not have been unanimous on an issue where unanimity was required, a resulting conviction will have to be quashed.
My opening and scornful remark about Weiss is addressed to its endorsement of the appeal-judges-as-jurors view of what an appeal court can do. I am one of those who think that appellate judges should never make determinations of guilt. Their function is to assess whether there is a real risk that a verdict more favourable to the defendant (appellant) would have been returned if the error had not occurred, or whether the trial was unfair or was a nullity.
Update: The day after Lane was delivered, the New Zealand Supreme Court decided that an error at trial resulting in the jury being instructed incorrectly on mens rea elements required the appellate court to apply the “real risk” analysis, and made no reference to the more fundamental trial fairness ground. Readers are not, therefore, assisted in discovering why this was not a fairness issue. The decision is currently subject to suppression orders, so is only available to people who have access to the databases: [2018] NZSC 56.
Another update: In Hofer v The Queen [2021] HCA 36 (10 November 2021, discussed here) it was decided that under the proviso the approach is , once an error that could have affected the outcome of the trial is identified, for the appellate court to reach its own verdict (if the available record and any further evidence admissible on appeal allow this to be done). Gageler J expressed regret that it was not necessary to reconsider the correctness of Weiss on this appeal, and that he had to follow it in the absence of any dispute between the parties as to its applicability.
